IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100014849 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show award of the Army Good Conduct Medal (AGCM) and Expert Infantryman Badge (EIB), and that he was promoted to the rank/grade of sergeant (SGT)/E-5.

2.  The applicant states that he received nonjudicial punishment (NJP) at the beginning of his military service for being absent without leave (AWOL) for a period of five days.  He states that after the period of his AWOL he had "outstanding" conduct and efficiency ratings while he was at Fort Bliss, TX, during 1973 and 1974.  He also states he passed the EIB test and he was told he would be awarded the EIB, but he never received the badge.  He further states that his Enlisted Efficiency Reports (EERs) shows that he served as an outstanding supply clerk.  He adds that when the supply sergeant went AWOL, he was given the responsibilities as an acting sergeant without any additional pay or the actual rank.

3.  The applicant provides no additional documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 
Military Records (ABCMR) to excuse an applicant's failure to timely file within the 


3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 30 March 1973 for a period of
4 years.  Upon completion of training he was awarded military occupational specialty (MOS) 11E (Armor Crewman).

3.  On 15 December 1973, the applicant received NJP under Article 15, Uniform Code of Military Justice, for being AWOL from 4 December to on or about
9 December 1973.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

   a.  item 5 (Oversea Service) he served in Germany from 25 November 1974 through 23 March 1977;

	b.  item 9 (Awards, Decorations and Campaigns) the National Defense Service Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Pistol Bar;

   c.  item 18 (Appointments and Reductions) he was advanced to specialist four (SP4)/E-4 on 1 September 1974;

   d.  item 21 (Time Lost) he was AWOL for 5 days from 4 December through
8 December 1973; and

	e.  item 35 (Record of Assignments) that he served in duty MOS 11E2O (Tank Driver - E-5) while assigned to Headquarters and Headquarters Company, 4th Battalion, 64th Armor, from 21 November 1975 through 9 November 1976.

5.  Three DA Forms 2166-4 (EER) covering the combined period from December 1973 through August 1975 show that three different raters and two different reviewers rated the applicant's personal and professional characteristics as "outstanding."  In addition, two of the raters assessed his promotion potential as "promote immediately" and the third rater indicated "promote [applicant] ahead of contemporaries."

6.  A DA Form 2166-5 (EER) covering the period from September 1975 through August 1976 shows he was serving in duty MOS 11E2O (Light Vehicle Driver) and his duties included issuing and turning in expendable and non-expendable supplies, maintaining clothing records, and processing requisitions.  His rater stated, "Although [the applicant] is a light vehicle driver by MOS, he works in the supply room as an additional duty.  [The applicant] is by far more knowledgeable in the aspects of unit supply than many MOS qualified supply clerks."

7.  A copy of a DA Form 2496 (Disposition Form), dated 21 January 1977, addressed to the Commander, Headquarters and Headquarters Company,
4th Battalion, 64th Armor, shows the applicant was identified for award of the Army Good Conduct Medal (1st Award) for the period 9 December 1973 through 8 December 1976.

8.  Headquarters, U.S. Army Training Center and Fort Jackson, SC, Order
55-717, dated 16 March 1977, relieved the applicant from active duty effective
1 April 1977.  The orders show the applicant's rank at the time was "SP4."

9.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he entered active duty on 30 March 1973, he was honorably released from active duty on 1 April 1977, and he was transferred to the U.S. Army Reserve (USAR) Control Group (Standby) to complete his Reserve obligation.  At the time he had completed 4 years of net active service.

   a.  Item 6a (Grade, Rate or Rank) and item 6b (Pay Grade) show "SP4" and "E4," respectively, and item 7 (Date of Rank) shows "74  09  01" (i.e.,
1 September 1974).

   b.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal.

   c.  Item 27 (Remarks) shows the entry "Time Lost:  05 Days Title 10,
73-12-04 to 73-12-08" (i.e., 4 December 1973 to 8 December 1973).

10.  U.S. Army Human Resources Command, Alexandria, VA, memorandum, undated, shows the Chief, Military Awards Branch, verified the applicant's entitlement to the National Defense Service Medal, Expert Marksmanship Qualification Badge with Pistol Bar, and Sharpshooter [sic - vice Marksman] Marksmanship Qualification Badge with Rifle Bar.  It also shows:
   
   a.  the applicant's entitlement to the AGCM could not be verified as orders authorizing the decoration could not be located and
	b.  the applicant's entitlement to the EIB and Expert Marksmanship Qualification Badge with Grenade Bar also could not be verified.

11.  A DD Form 215 (Correction to DD Form 214), dated 15 April 2010, shows the applicant's DD Form 214 was corrected to add the Expert Marksmanship Qualification Badge with Pistol Bar and the Marksman Marksmanship Qualification Badge with Rifle Bar.

12.  There are no orders in the applicant's military personnel records that show he was awarded the first award of the AGCM.  There is also no evidence the applicant's commander disqualified him from the award.

13.  There is no evidence the applicant passed the EIB test and there are no orders or other evidence in the applicant's military personnel records that shows he was awarded the EIB.

14.  There are no orders or other evidence in the applicant's military personnel records that show he was promoted to SGT or specialist five (SP5)/E-5.

15.  Army Regulation 600-8-22 (Military Awards) states the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.

16.  Army Regulation 600-8-22 states award of the EIB requires that an individual must have satisfactorily completed the prescribed proficiency tests while assigned or attached to an infantry unit of at least battalion size.  To be eligible for testing and award of the EIB, a Soldier must be in an active Army status and must have an infantry or special forces specialty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show:

   a.  he was awarded the AGCM because he had "outstanding" conduct and efficiency ratings after the period of his AWOL;

   b.  he passed the EIB test and he was told he would be awarded the EIB; and

   c.  he served as an Acting SGT (E-5) and he was promoted to pay grade E-5.
2.  Records show that, subsequent to the applicant's period of AWOL, he served a qualifying period of active duty enlisted service for award of the AGCM from
9 December 1973 through 8 December 1976.

	a.  There is no evidence of any disqualifying information subsequent to
8 December 1973;

   b.  He was advanced to SP4/E-4 on 1 September 1974;

   c.  He received personal and professional characteristic ratings on his EERs of "outstanding" and recommendations for accelerated promotion; and

   d.  He was recommended for award of the AGCM (1st Award) for the period
9 December 1973 through 8 December 1976.

3.  Based on the available evidence, it would be appropriate to award him the first award of the AGCM and correct his DD Form 214 to show this award.

4.  There are no orders or other evidence of record that shows the applicant passed the EIB test or that he was awarded the EIB.  There is also no evidence that he was awarded an infantry MOS or assigned to an infantry unit.  Therefore, there is no basis for granting this portion of his request.

5.  The evidence of record shows the applicant was advanced to SP4/E-4 on
1 September 1974.  The evidence of record also shows he served in an E-5 duty position and he performed additional duties as a supply clerk.  However, this is an insufficient basis to correct the applicant's records to show he was promoted to pay grade E-5.  Specifically, there are no orders or other evidence that shows he was promoted to pay grade E-5.  Therefore, there is no basis for granting this portion of his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  awarding him the Army Good Conduct Medal (first award) for the period
9 December 1973 through 8 December 1976 and

	b.  adding to item 26 of his DD Form 214 the Army Good Conduct Medal
(first award).

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the Expert Infantryman Badge and promotion to pay grade E-5.



      ___________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100014849



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ABCMR Record of Proceedings (cont)                                         AR20100014849



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